Additional Resources

LEGAL TRAINING RESOURCE CENTER

1. Introduction

a. Country Background

Pakistan was founded on August 14, 1947. As the decolonization movement in India gained traction, the Muslims of India pushed for their own state. On the same day that the British exited India, they partitioned the country along both its Western and Eastern border to create the nation of Pakistan. This partition led to widespread violence and mass displacement. Hundreds of thousands of people were killed in the ensuing chaos.

Upon its inception, Pakistan was split into two distinct parts, separated by thousands of miles. In 1971 a bloody civil war and ethnic cleansing was perpetrated on “East Pakistan” by “West Pakistan,” which culminated in East Pakistan seceding from West Pakistan to form the nation of Bangladesh. Over the course of its short history, Pakistan has had several military coups, and four wars. Pakistan has had three different constitutions, the most recent of which came into effect in 1973.

In 1977, military dictator General Zia-ul-Haq launched a coup, which propelled him into power. Zia immediately began an “Islamization” campaign to introduce Sharia law into the Pakistani legal system and establish Islamic courts. Zia also introduced a series of controversial “blasphemy laws” that were enforced selectively to persecute women and minorities. Perhaps the most controversial “Islamization” measure was the introduction of the Hudood Ordinances, a series of “Islamic” laws that criminalized “adultery”and “fornication,” and introduced punishments such as whipping, amputation, and stoning to death into the law.[1] To date, the Hudood Ordinances have been used to incarcerate thousands of rape victims on the charge of “adultery.[2]” Zia-ul-Haq was killed in a plane crash along with two American diplomats and several military officials on 17 August 1988. But the effects of Zia’s blasphemy laws can still be felt, and 1335 people have been accused of blasphemy between 1987 and 2014[3]. Blasphemy laws have also led to vigilantism and extrajudicial murders and executions.[4]

Minorities have increasingly come under attack in Pakistan. On September 7th 1974, the Second Amendment to the Constitution declared that Ahmedi Muslims were not Muslims, exposing this community to attacks from the government and private citizens alike. [5]

Internet censorship of content perceived to be offensive to Muslims has increased since 2010 and recently been codified into law.[6] Pakistan’s Prevention of Electronic Crimes Bill (“PECB”) is criticized for being overbroad, leaving the door open to government censorship, surveillance, and other violations of fundamental rights.[7] The PECB has been used in Anti-terrorism courts (“ATC”) to sentence people for posting purportedly “hateful material” online.[8]

The ATCs were established by the Anti-Terrorist Act of 1997 which was amended in October 1998 after most of its provisions were made unconstitutional by the Pakistani supreme court.[9]

The ATCs were re-established a few times in Pakistan history, most notably for a time limit of two years in 2014 by Prime Minister Nawaz Sharif after a deadly terrorist attack on a Peshawar school.[10] The Protection of Pakistan Bill was also passed in 2014, ostensibly to give “statutory cover” to armed forces launching an attack against terrorists in North Waziristan.[11] The bill has been criticized by various human rights groups for the broad powers it gives security agencies and the possible violations of human rights it allows.[12]

Pakistan’s use of capital punishment since 2014 has led to the executions of 441 prisoners.[13] The problem of enforced disappearances has also expanded. The disappeared include Balouchi separatists, Sindhi political workers, anti-military activists in Khyber Pakhtunkhwa, journalists, and recently, social media activists.[14]

The extrajudicial killings of suspects are also common-place, as well as death from physical abuse while in the custody of security forces.[15] On April 20th, 2017 the United Nations Committee Against Torture (“CAT”) reviewed Pakistan’s implementation of the Convention against Torture[16]. Pakistan ratified the UN Convention Against Torture in 2010. Alessio Bruni of the CAT quoted a media report asserting that a majority of Pakistani prisoners are tortured and sexually assaulted in custody. Trials in military courts are conducted in secret and without outside supervision. Saroop Ijaz of the Human Rights Watch noted that the government had not implemented reforms that it had promised.

b. Type of System

The Pakistani legal system is modelled on the British common law system. In fact, some major statutes in force today, such as the Pakistani Code of Criminal Procedure 1898, date back to colonial times.
In the 1980s, under the reign of military dictator Muhammad Zia-ul-Haq, elements of Sharia law were incorporated into Pakistani law. This also led to the creation of the Federal Shariat Court (“FSC”).

c. The Legal Aid Situation:

i. State Sponsored Legal Aid

The Constitution states that “[t]he State shall ensure inexpensive and expeditious Justice.”[17]
Further, Bar Councils are obligated by statute to provide pro-bono legal assistance through free legal aid committees. According to the Pakistan Bar Council Free Legal Aid Rules, 1999, “poor, destitute, orphan, widows, indigent and other deserving litigants” involved in certain categories of cases are entitled to free legal aid from legal aid committees.[18]

A defendant who is on trial for a crime that carries a sentence of life imprisonment or death is entitled to a state appointed lawyer. In other cases, a person may petition for a state appointed lawyer from the Bar council for “pauper suits.” These pauper suits are ostensibly funded by the Finance Ministry but this funding hardly ever materializes. Similarly, the government regularly allocates money to pay for legal services for the poor who cannot afford to foot legal bills, but this budget is usually spent on other activities. [19]

Free legal aid also faces opposition from private lawyers who view it as a threat because it shrinks the market for their services.

Availability and utilization of free legal aid also varies widely by province. In Punjab, only 3% of litigants reported receiving free legal aid. In Sindh and Balochistan, 25% and 16% of litigants respectively reportedly had access to pro-bono legal aid. In Khyber-Pakhtunkhwa, only 5% of litigants had access to free legal aid.

ii. NGOs Providing Pro Bono Legal Aid

There are a number of NGOs providing pro bono legal aid in Pakistan, including:

i. Number of Lawyers

According to a 2010 report, there were an estimated 89,624 lawyers enrolled to practice in different Pakistani courts. Of these, 43,964 were licensed to only practice on the district court level.[20]
More recent numbers show that the numbers of registered attorneys has increased dramatically over the last few years. According to the Supreme Court’s 2016 annual report, there are 4,795 advocates enrolled to practice before the Supreme Court, and 76,855 advocates enrolled to practice at the high court level. There were no recent statistics on the overall number of lawyers in Pakistan but the increase in total number of Supreme Court and High Court level lawyers from 45,660 to around 81,680 in 2016, indicates vast growth in the legal profession[21].

d. Sources of Defendant’s Rights

i. National Sources of Defendant’s Rights

The Constitution of Pakistan, Articles 8 to 28, deal with the fundamental rights of individuals. Article 8 states that any law inconsistent with or in derogation of fundamental rights is to be void. Article 9 guarantees the security of person against deprivations of life or liberty[22]. Article 10 outlines the safeguards against arbitrary arrest and detention including the right to counsel. Article 10A guarantees the right to a fair trial and due process. Article 11 prohibits slavery and forced labour. Article 12 protects against retrospective punishment. Article 13 protects against double jeopardy and self-incrimination. Article 14 guarantees the dignity of man including privacy and prohibition against torture. Article 15 guarantees freedom of movement. Article 16, 17, and 18 provide for free movement, free assembly, and free association respectively. Article 19 guarantees the Freedom of speech and the right to information. Article 20 guarantees religious freedom. Article 23 and 24 guarantee protections for individual property. Article 25 guarantees equality of all citizens before the law. Article 25A guarantees the right to education for all children between the ages of five and sixteen. Article 28 enshrines the right to preservation and promotion of language, script and culture.

ii. International Sources of Defendant’s Rights

Pakistan is a States Party to many international conventions and treaties that provide a variety of rights for it’s citizens, including:

● International Convention on the Elimination of All Forms of Racial Discrimination (1969)

○ Signed: 1966
○ Ratified: 1966

● International Covenant on Civil and Political Rights (1976)

○ Signed: 2008
○ Ratified: 2010

● International Covenant on Economic, Social, and Cultural Rights (1976)

○ Signed: 2004
○ Ratified: 2008

● Convention on the Elimination of all Forms of Discrimination Against Women (1981)

○ Signed: N/A
○ Ratified: 1996

● Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987)

○ Signed: 2008
○ Ratified: 2010

● Convention on the Rights of the Child (1990)

○ Signed: 1990
○ Ratified: 1990

● Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2002)

○ Signed: 2001
○ Ratified: 2016

● Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2002)

○ Signed: 2001
○ Ratified: 2011

● Convention on the Rights of Persons of Persons With Disabilities (2008)

○ Signed: 2008
○ Ratified: 2011

2. Pre-Trial Procedures

a. Police Procedures

i. Complaint/Information

All criminal complaints in Pakistan must be made in person at the police station with jurisdiction over the alleged offense.[23] An accused is triable and may be “inquired” into in the district where an “act is done or where consequences ensue[].”[24] There are also a number of federal police agencies that have jurisdiction over particularized types of federal crimes.

Under section 154 of the Code of Criminal Procedure of Pakistan (“CrPC”), the police are required to register complaints of all “cognizable” offenses brought into a police station. Code of Criminal Procedure of Pakistan, 1898 as amended by Act II of 1997, § 154. “Cognizable” is defined as: “an offense for . . . which a police officer, may, in accordance with the second schedule[35] or under any law for the time being in force, arrest without a warrant.[36]” Once preliminary inquiries are made, police lodge a First Investigation Report (“FIR”). An FIR is required to begin formal investigation of a crime[37]. Investigations may include: examination of the scene of a crime, examination of witnesses, recording statements, conducting searches, seizing property, collecting fingerprints and other evidence, making entries in the prescribed records such as the case diary; making arrests and detentions, and interrogating suspects[38]. Once an FIR is filed, the police are bound to investigate the complaint unless they provide a written explanation for not doing so. Additionally, cancelling a registered FIR is “extremely difficult and ultimately entirely at the discretion of the court.”

As a recent Human Rights Watch (“HRW”) report outlines, the police often refuse to register and investigate FIRs in order to avoid their legal obligation to investigate a matter, to keep crime rates ostensibly low, protect the rich and elite, and as a result of corruption. Further, police often discriminate against women and minorities by failing to investigate crimes committed against them. Additionally, since it is often necessary to bribe police officers to induce them to investigate a reported crime, police corruption has a disproportionate impact on the poor and minorities.

ii. Arrest, Search and Seizure Laws

● Arrest

Police can investigate and arrest individuals suspected of cognizable offenses, without the direction or warrant of a Magistrate[39]. For non-cognizable offenses, police cannot investigate or arrest individuals suspected in the offense “without the order of a Magistrate of first or second class having power to try such case.”[40]

Section 46 of Cr.P.C sets out the procedure of an arrest.: (1) In making an arrest the police-officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

Section 54 of Cr.P.C. lays out the procedure for arresting someone without a warrant. There are nine circumstances under which a person can be arrested without a warrant:
- “Firstly, any person who has been concerned in any cognizable offense or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists;
- Secondly, any person having in his possession . . . any implement of house-breaking;
- Thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Provincial Government;
- Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offense with reference to such thing;
- Fifthly, any person who obstructs a police-officer . . . or who has escaped, or attempts to escape from lawful custody;
- Sixthly, any person reasonably suspected of being a deserter from the armed force of Pakistan;
- Seventhly, any person . . . concerned in any act committed at any place out of Pakistan which, if committed in Pakistan, would have been punishable as an offense and, for which he is, under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in Pakistan;
- Eighthly, any released convict committing a breach of [conditions of release];
- Ninethly, any person any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.”

● Pre-Trial Detention

Pre-trial detention presumptively should not exceed twenty-four hours. Section 61 of the Code of Criminal Procedure of Pakistan states: “[n]o police-officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court[41].”

Additionally, when an investigation cannot be completed within twenty-four hours, section 167 of the Code of Criminal Procedure of Pakistan states: that “the officer in charge of the police-station or the police-officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the [nearest Magistrate] a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate[42].”

The Magistrate can then “authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole.[43]” The Magistrate has to “record his reasons for” extending detention[44].

● Searches

Section 165 of CrPC states: “Whenever an officer in charge of a police-station or a police-officer making an investigation has reasonable grounds for believing that anything necessary for the purpose of an investigation into any offence which he is authorized to investigate may be found in any place within the limits of the police-station of which he is incharge, or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station.” [45]

● Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police
procedures)

Neither the Pakistani Law of Evidence, nor the constitution, explicitly provide for the exclusion of improperly obtained evidence. However, some have argued that this right can be read into Pakistani law[46]. The Pakistani Constitution’s Article 14, which provides for the inviolability of the dignity of man, including the privacy of the home, and a prohibition against torture for the purpose of extracting evidence, is substantially similar to the Fourth Amendment to the US Constitution.[47] Further, sections 38 and 39 of the Qanun-e-Shahdat Order, 1984 (Law of Evidence), prohibit the use of any confessions to police officers or while in the custody of police, against a defendant in court[48]. Section 38 states: [n]o confession made to a police officer shall be proved[49] as against a person accused of any offense[50]. Similarly, section 39 states: “no confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.” Therefore, there might be an implied exclusionary rule, especially in the context of information extracted through torture while in police custody.

iii. Lineups and Other Identification Procedures

This does not appear to be covered under Pakistani law.

● Lineups
This does not appear to be covered under Pakistani law.

● Other identification procedures
This does not appear to be covered under Pakistani law.

iv. Interrogation

● Before formal charge in court
This does not appear to be covered under Pakistani law.

● After Defendant is formally charged
This does not appear to be covered under Pakistani law.

● Enforcing the Rules (procedures to protect against illegal interrogation)

Article 37 of the law of evidence prohibits the use of “confessions caused by inducement, threat or promise” as irrelevant in a criminal proceeding[51]. Further, articles 38 and 39 prohibit the use of confessions made to police officers or while in the custody of police, against the accused[52].

b. Right to Counsel

Article 10 of the constitution states: “No person who is arrested shall be . . . denied the right to consult, and be defended by a legal practitioner of his choice.”[53]

Section 340 of Cr.P.C. states: “[a]ny person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.[54]”

3. Rights of the Accused at All Time:

a. Criminal Law System

i. Double Jeopardy

The right against double jeopardy is protected by the Pakistani constitution as well as the penal code. Article 13 of the constitution states: “[n]o person shall be prosecuted for the same offense more than once.[55]” Similarly, article 403 of the Pakistani Code of Criminal Procedure states that “[a] person who has once been tried by a Court of competent jurisdiction for an offense and convicted or acquitted of such offense shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offense . . . .”[56]

ii. Legality Principle

The legality principle in Pakistani law has been interpreted to be synonymous with the prohibition against retrospective/retroactive punishment (see section on ex post facto laws).[57]

iii. Presumption of Innocence

The Pakistani constitution does not explicitly guarantee the right to a presumption of innocence for criminal defendants.

iv. Standards of Proof and Standards for Conviction

The burden of proof in a criminal trial is only explicitly mentioned in the law of evidence or the Qanun-e-Shahadat, 1984. Articles 117 to 129 of the Qanun-e-Shahadat deal with the burden of proof.[58] In criminal cases the burden lies with prosecution to prove beyond a reasonable doubt that the defendant is guilty of the charged offense. The Supreme Court of Pakistan has stated: “Finding of guilt against an accused cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Finding of guilt should rest surely and firmly on the evidence produced. Mere conjectures and probabilities cannot take the place of proof. Otherwise the golden rule of benefit of doubt will be reduced to naught.”[59]

The burden of proof may shift to the defendant when he is trying to use an exception or affirmative defence. Additionally, the Supreme Court of Pakistan has held that the presumption of innocence is not a fundamental right as the legislature can choose to shift the burden to the accused.[60]

Consequently, there are a number of criminal laws in Pakistan that place the burden of proof on the accused. Prominent examples include the National Accountability Bureau Ordinance, 1999 and The Pakistan Protection Ordinance (“PPO”), passed into law in 2014. Clause 15 of the PPO reads: “[a]n enemy alien or militant facing the charge of a scheduled offense on existence of reasonable evidence against him shall be presumed to be engaged in waging war or insurrection against Pakistan unless he establishes his non-involvement in the offense.”[61]

v. Procedure with Witnesses

Any police officer making an investigation can, in writing, “require attendance of witnesses” who “from information given or otherwise, appears to be acquainted with the circumstances of the case; and such [witnesses] shall attend as so required.”[62]

Police officers can, “by general or special order . . . examine orally any person supposed to be acquainted with the facts and circumstances of the case.” [63]Additionally, “[s]uch person shall be bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.”[64] Finally, the “police-officer may reduce into writing any statement made to him in the course of an examination . . . and if he does so he shall make a separate record of the statement, of each such person whose statement he records.”[65]

vi. Capital Punishment

Pakistan has not abolished the death penalty. Crimes punishable by death include:
○ Aggravated Murder
○ Murder
○ Other offenses resulting in death
○ Terrorism related offenses resulting in death
○ Terrorism related offenses not resulting in death: airplane hijacking, or assisting a hijacking, attempting to harm railway passengers, etc.
○ Rape not resulting in death
○ Kidnapping not resulting in death
○ Drug trafficking not resulting in death
○ Adultery
○ Apostasy
○ Treason
○ Military offenses not resulting in death
○ Other offenses not resulting in death[66]

In December, 2014, Pakistan reinstated the death penalty after a seven-year moratorium on executions. According to the latest estimates, there have been at least 15 executions so far in 2017 alone. In 2016, there were an estimated 87 executions and 330 executions in 2015.[67]

vii. Ex Post Facto punishment

Article 12 of the Pakistani Constitution, “Protection against retrospective punishment,” states: “[n]o law shall authorize the punishment of a person (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.”

Although a plain reading of the article may suggest that it only prohibits the punishment, not the conviction under ex post facto laws, the Supreme Court has held that Article 12 applies to both conviction and punishment.[68]

In the Baluch case of 1968, the Supreme Court of Pakistan stated: “[i]t is well-settled that a law is not to be given retrospective effect unless it is expressly or by necessary intendment made retrospective … In the present case, what was under challenge in the High Court, was the validity of the detention order passed on the 11th August 1966, which was made before the present amendments came into force. The validity of that order has, of necessity, therefore, to be judged on the basis of the law prevailing on that day.”[69]

b. Fair Trial Rights

i. Freedom from prolonged pre-trial detention

Constitutional safeguards exist for arrest and detention under Article 10(2): “Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without authority of a magistrate.”

ii. Right to counsel

Article 10 of the constitution states: “No person who is arrested shall be . . . denied the right to consult, and be defended by a legal practitioner of his choice.”
Section 340 of Cr.P.C. states: “[a]ny person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.”

iii. Right to habeas corpus

Article 199(1)(b)(i) of the Constitution states that the court “if it is satisfied that no other adequate remedy is provided by law” may “on the application of any person, make an order directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.”

Section 100 Cr.P.C. states that “[i]f any Magistrate of the first class or Sub-Divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.”

Section 491 Cr.P.C. power of the High Court: Any High Court may, whenever it thinks fit, direct:

(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;

(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;

(c) that a prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively;

(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and

(f) that the body of defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment.

(2) The High Court may, from time to time, frame rules to regulate the procedure in the cases under this section.

(3) Nothing in this section applies to persons detained under [any other law providing for preventive detention.]

iv. Right to a fair trial

Article 10A of the Pakistani constitution guarantees the right to a fair trial: “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”

v. Right to notice of charges

Article 10(1) of the constitution provides that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest . . . .”

vi. Right to non self-incrimination

Article 13(b) of the constitution provides that “No person shall, when accused of an offense, be compelled to be a witness against himself.”

vii. Right to a speedy trial

Section 344 Cr.P.C. requires a court to provide explanation in writing for any delays or postponements in a trial. This section states: “If, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefore from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.”

viii. Right to appeal

There is no inherent right to appeal under Pakistani law. This right must be expressly provided for by the Cr.P.C or “by any other law for the time being in force.”[70] An appeal must be a continuation of the original proceeding where a cause is re-heard. There is no appeal for a person who pleaded guilty, unless it is an appeal of the “legality of the sentence.[71]

What is appealable and who may appeal?
Under Sections 408, and 410 of the Cr.P.C, a defendant may appeal a conviction or sentence issued by: a Magistrate judge of the second or third class to the District Magistrate; an assistant sessions judge or judicial magistrate to the Court of Session; a court of session or sessions judge to sessions judge or by an additional sessions judge.

A defendant may only appeal sentences pronounced by the High Court under certain circumstances, either to the Supreme Court or to a panel of the High Court.[72]

- Appeals to the Supreme Court are governed by Article 185 of the Constitution. Article 185 states that “an appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence:”

(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or

(b) if the High Court has withdrawn for trial before itself any case from any court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or

(c) if the High Court has imposed any punishment on any person for contempt of the High Court; or

(d) if the amount or value of the subject matter of the dispute in the court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of 411[Majlis-e-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or

(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or

(f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.[73]

- Appeals to the High Court are heard by a panel of the High Court composed of “not less than two judges, being judges other than the judge or judges by whom the original trial was held.” Appeals may be mounted:

o Against the conviction on any ground of appeal which involves a matter of law only;

o With leave of the appellate court, or upon certification of the judge who tried the case, on the basis that it is fit for appeal;

o With leave of the appellate court against the sentence passed unless the sentence is fixed by law.[74]

Appeal Against Acquittal:

The Provincial government or public prosecutor has the right to appeal “against acquittal” if the order of acquittal came from any court other than the High Court. Similarly a complainant, and any aggrieved person, can appeal acquittal to the High Court through a special leave to appeal.[75]

Both matters of fact, as well as matters of law are appealable. The severity of a sentence is deemed to be a matter of law.

Powers of appellate Court:

The appellate court may take any of the following actions:
- dismiss an appeal summarily - Section 421, Cr.P.C
- When not so dismissed, record to be summoned and notices be issued – Section 423 (1) and 428
- May suspend operation of order - Section 426 Cr.P.C
- May dismiss the appeal - Section 423 Cr.P.C
- Reverse etc. the order under appeal - Section 423 Cr.P.C

The appellate court may not dismiss an admitted appeal for non-appearance.

4. Rights in prison

i. Conditions of confinement

The Pakistani Constitution guarantees the “dignity of man” and states that “no person shall be subjected to torture for the purpose of extracting evidence.”[76]

A 2016 Report by the UK’s Independent Advisory Group on Country Information (“IAGCI”) found that “[p]rison conditions in Pakistan are extremely poor.”[77] One of the major issues faced by prisoners is overcrowding. In 2015, there were a total 80,169 prisoners incarcerated across 88 Pakistani prisons. At the same time, Pakistani prisons were estimated to be at 171.6% capacity[78]. The most recent estimated figures seem even more stark, estimating that the total prison population is 100,000 while the normal capacity of all prisons is approximately 36,000.[79]

Other issues include inadequate access to food, water, and medical care. Corruption and rampant torture are also ongoing issues in prisons. Prisoners, especially those on death row, live in cramped, overcrowded, unsanitary cells, and face rampant abuse from guards.[80] According to the Human Rights Commission of Pakistan (“HRCP”), 65 persons died in Pakistan’s prisons during 2015. 46 died from various diseases, 4 died from torture, and 1 from beating by a fellow inmate[81].

Prisoners are also required to perform hard labour in prison. The Prisons Rules require that prisoners be provided “suitable labour” with a view to “[i]mparting vocational training to the prisoners to enable them to earn respectable livelihood after their release.” This work can only be in an industry which is “locally available in the hinterland.”[82]

ii. Immigrant detention

In 2007, 1.2% of Pakistan’s total prison population was comprised of “foreign prisoners.”[83] This amounts to about 1000 foreign prisoners in Pakistani prisons.

The most recent US Department of State Report noted that Foreign prisoners “often remained in prison long after completion of their sentences because they were unable to pay for deportation to their home countries[84].”

iii. Right to medical care in prison

Chapter 32 (Rules 776–809) of the Prison Rules 1978 deals with the medical care of prisoners[85]. Prison procedures require that every prisoner, upon admission, be inspected by a Medical Officer and classified according to health, i.e. good, bad, or indifferent. “Bad” refers to prisoners “who are in immediate need of medical treatment.” Those who “are not fit for hard labour, but do not need hospital treatment, shall be shown as in indifferent health.” Further, “[i]f a prisoner is in bad or indifferent health, the Medical Officer shall record the cause of the disability . . . on the history ticket and admission register[86].” Prisoners “addicted to opium or other narcotics shall be placed under medical treatment in order to purge them of the habit[87].” Prisoners who complain “of illness,” are “brought before the Medical Officer or the junior Medical Officer who shall examine him and determine whether he shall be treated as an out-patient or admitted to hospital.”[88]

In reality, prisoners are faced with a severe lack of access to food and medical care. The 2015 US State Department Report noted that “[i]nadequate food and medical care in prisons led to chronic health problems and malnutrition for those unable to supplement their diets with help from family or family.” In many facilities, sanitation, ventilation, lighting, and access to potable water were inadequate. Most prison facilities were antiquated and had no means to control indoor temperatures. A system existed for basic and emergency medical care, but bureaucratic procedures slowed access.”[89]

iv. Mental health care

The language used to describe prisoners suffering from mental health problems in the Pakistan Prison Rules, is outdated and offensive. A “mental patient” is described as “an idiot or person of unsound mind.” [90]This outdated language is based on the Lunacy Act of 1912 which was replaced in 2001 by the Mental Health Ordinance for Pakistan (“MHO”).[91] The MHO requires the creation of a Federal Mental Health Authority comprising of seven “eminent psychiatrists of at least ten years good standing” as well as the Secretary of Health, Director General of Health, Provincial Health Secretaries, and an Advisor in Psychiatry[92]. This Federal Mental Health Authority is charged with overseeing all psychiatric facilities in the country through regular inspections. [93]The MHO also reduces the amount of time the government can detain those suffering through mental health crises. Under the Lunacy Act of 1912, the government could detain someone for a period of ten days, extendable by the magistrate’s permission to a maximum of 30 days before an actual inquiry was held to determine the detainee’s status[94]. Under the MHO, the maximum forced detention allowed is 72 hours “for the purpose of enabling him to be examined by a psychiatrist or his nominated medical officer and for making any necessary arrangements for his treatment or care.”[95] Unfortunately, the MHO has not been fully implemented and the Federal Mental Health Authority has not come into existence yet. Therefore, many of the outdated procedures and language from the Lunacy Act of 1912, are still being followed, including in the context of prisons.[96]

Chapter 18 of The Pakistan Prison Rules (Rules 433–455), outlines the procedures related to mentally ill prisoners[97]. There are four classes of “criminal mental patients:” “an accused person, in respect of whose soundness of mind doubts are entertained by the Magistrate trying the case;” “an accused person, who by reason of unsoundness of mind, is incapable of making his defense;” “ a person who is held to have committed an act which would have constituted an offense but for the unsoundess of his mind, and who has been acquitted on the ground that he was of unsound mind when the act was committed;” and “ a convicted prisoner who becomes a mental patient in prison.”[98]

The Prison Rules have not been changed to bring them into compliance with the MHO, or with 21st century ideals of how to treat the mentally ill. Therefore, the rules still allow “mental patients” to be “detained for observation” for a maximum period of thirty days.[99] They do require that “mental patients” be segregated from the general prison population. At the same time, the Prison Rules also provide some protections for prisoners dealing with mental health issues. The rules state that time spent in a mental hospital can count towards a person’s sentence. Therefore, “[w]hen as insane prisoner has become of sound mind, and an order for his return to prison has been issued by Government, the time during which he was detained in the mental hospital shall be reckoned as sentence undergone.” Similarly, “a mental patient cannot be punished for any offense committed by him, but such restraints can be imposed as are necessary to prevent him from injuring himself or others, or causing inconvenience.”[100]

Despite the Rules, the 2015 US State Department Report noted, “[p]risonsers with mental illness usually lacked adequate care, and authorities did not separate them from the general prison population.”[101]

v. Women’s rights in prison

In 2015, women made up 2.1% of the total prison population of Pakistan.[102] This equals a total female prison population of 1,684.

Women are required to be separated from men in confinement. “[I]n a prison containing female as well as male prisoners, the female shall be imprisoned in separate buildings or separate parts of the same building, in such manner as to prevent their seeing, or conversing or holding any intercourse with, the male prisoners.”[103] Within the women prisoner population, further segregation is required to separate “[u]nconvicted from convicted prisoners; juveniles and adolescent from adult prisoners; habitual from casual prisoners; and prostitutes and procuresses from respectable women.” [104]The 2016 US Department of State report noted that in reality women are held “separately from men in some, but not all, prisons. Balochistan had no womens’ prison” although “officials claimed they housed women in separate barracks in Quetta and Lasbela district prisons.”[105]

Female prisoners are further protected, under the law, from certain types of punishments including “imposition of handcuffs, fetters or whipping, provided that handcuffs may if absolutely necessary, be imposed on any woman prisoner for the purpose of restraint only.”[106]

Pregnant prisoners “in an advanced stage of pregnancy shall be reported to the Inspector-General for reference to the Government with a view to the suspension and remission of her sentence or otherwise. A full statement of the case by a lady doctor shall accompany the report.”[107] Further, “[a]s far as possible a child birth in prison shall be avoided, but if this is not possible, the services of a lady Medical Officer or failing it a qualified midwife shall be requisitioned.[108]” Women prisoners “shall be allowed to keep their children with them in prison till they attain the age of three years.[109]” In Punjab, Sindh, and NWFP, women prisoners can keep their children with them until they turn six.

In reality, women prisoners often face harsh conditions. A 2014 report by HRCP noted “800 or so female prisoners in Pakistani jails were facing harassment, insanitary conditions and lack of proper healthcare. It is widely believed that a majority of the female prisoners experience sexual harassment and sexual violence at the hands of jail wardens. During prison surveys, UNODC found prevalence of suicidal depression, sleep disorders and other mental illnesses among female prisoners. No gynaecologist was available on call to attend to female prisoners in Punjab.”[110] Another survey conducted between 2013-14 found that “no jail had a full-time female doctor” on staff.

5. Court Procedures

a. Pre-Trial

i. Charging Instrument

The instrument must state:

- The name of the offense with which the accused is charged
- Sufficient description of the offense if the offense has no specific name
- The law and section of the law “against which the offense is said to have been committed”
- If a previous conviction enhances or changes punishment for a subsequent crime, “the fact, date and place of the previous conviction shall be stated in the charge.”[111]
- Particulars about the time and place of the alleged offense, and the person “(if any) against whom; or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.”[112]
- The manner of committing the offense, if all of the previously listed particulars do not “give sufficient notice of the matter with which he is charged.”[113]
The instrument must be in English or in the language of the Court.

ii. Preliminary Hearing

Whenever a police station has reason to suspect the commission of a cognizable offense “which he is empowered . . . to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offense upon a police-report.”[114]

After receiving this report, a Magistrate “may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into, or otherwise to dispose of, the case.”[115]

iii. Discovery

An investigation is defined as “all the proceedings under this Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by a Magistrate on this behalf.”[116]

b. Trial

i. Nature of the Trial

Pakistan has an adversarial system. The Provincial Government may appoint one or more Prosecutors “in any case, or for any specified class of cases, in any local area.”[117] Counsel can also be hired by victim/victim’s family against government appointed defence counsel or private defence counsel.

ii. Defendant

In addition to the numerous rights outlined above, the accused has a right to have witnesses and documents summoned in his defence.[118] The defendant also has the right to be present at his trial.[119]

iii. Expert Witnesses

An expert witness may be called by the court “[w]hen the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identify of hand-writing or finger impress [or as to authenticity and integrity of electronic documents made by or through an information system], the opinions upon the point of persons specially skilled in such foreign law, science or art, or in questions as to identity of hand writing or finger impressions [or as to the functioning, specifications, programming and operations of information systems, are relevant facts]. Such persons are called experts.”[120]

Similarly, facts “not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.”[121]

iv. Judges

There are three levels of Pakistani criminal courts: The Courts of Magistrate, The Courts of Session, and the High Courts. The Powers of each of the courts, and judges, vary.[122]

High Court

There are four provinces in Pakistan: Punjab, Sindh, Balochistan, and Khyber-Pakhtunkhwa. Each province has its own provincial government as well as a provincial judicial system composed of a High Court, and multiple levels of subordinate courts. Therefore, there are four provincial High Courts in Pakistan, as well as a fifth High Court for the federal capital city of Islamabad. The Lahore High Court is composed of a Chief Justice and 59 additional judges. The High Court of Sindh is composed of a Chief Justice and 39 additional judges. The High Court of Balochistan is composed of a Chief Justice and 10 additional judges. The High Court of Khyber-Pakhtunkhwa, based out of Peshawar, is composed of a Chief Justice and 19 other judges. The Islamabad High Court has a Chief Justice and 6 other judges.[123]

A High Court “may pass any sentence authorized by law.[124]” High Courts have original jurisdiction in the enforcement of fundamental rights, and appellate jurisdiction over all civil and criminal matters. A High Courts also supervises and controls all the courts subordinate to it and appoints its own staff and frame its own rules of procedure as well as the rules of procedure for subordinate courts[125].

Sessions Court

Within each district of a province, there are several sessions divisions—usually one for each town and city in the province.[126] The Provincial governments each establish a Court of Session for every session division, and appoint a judge of each such court. The Provincial governments may also appoint additional sessions judges and assistant sessions judges to exercise jurisdiction in one or more of such courts.[127] A Sessions Judge “may pass any sentence authorized by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.” An Assistant Sessions Judge “may pass any sentence authorized by law, except a sentence of death or of” imprisonment for a term exceeding seven years.[128]

Magistrate Court:

Provincial governments are charged with appointing a district magistrate for every district in the province. The provincial government may also appoint additional district magistrates to exercise jurisdiction in one or more districts[129]. All judicial Magistrate judges are subordinate to Sessions judges.[130] Magistrate judges may only pass certain types of sentences. Magistrate judges of the first class can try offenses punishable with up to 3 years imprisonment and fines up to fifty thousand rupees.[131] Magistrate judges of the second class can only try offenses punishable up to1 year imprisonment and fines up to five thousand rupees. Magistrate judges of the third class can try offenses punishable up to 1 month imprisonment and fines up to one thousand rupees.[132]

Judges

Judges are the trier of fact and the trier of law under Pakistani law.

Judges decide questions about the admissibility of evidence.[133] At trial, judges also have the power to ask questions of witnesses, and to compel production of documents. Neither party at trial can object to any such question or order, nor, without leave of the Court, “cross-examine any witness upon any answer given in reply to any such question.”[134]

v. Victims

Victims or families of victims can appoint their own counsel/prosecutor to try the case against the defendant. This “private pleader” must act under the direction of the publically appointed prosecutor.[135]

c. Sentencing

Sentencing in Pakistan is left largely to the discretion of judges. There are no sentencing guidelines or specific statute dedicated to providing guidance to judges regarding sentencing. The Pakistan Penal Code prescribes certain types of sentences and punishments for certain crimes but leaves the majority of cases within a judge’s discretion. Judges are not even required to hold a pre-sentencing hearing to fully consider the sentence available, mitigating factors, and aggravating factors.[136] One requirement the Supreme Court of Pakistan has outlined is proportionality, stating that “sentence [is] to be proportionate to the offender’s culpability.”[137]

Correction System

Following the criminal trial, the offender enters the correctional system. The correctional system involves probation, jails, and parole programs for both juvenile and adult offenders. Complicating this system is the dramatic population explosion in the country, and minimum numbers of jails. Apart from that, jail system suffers from an extremely poor performance record, many offenders return to crimes shortly after spending being released. This is due to the lack of effective treatment and training programmes, poor physical environment and health conditions, and the fact that offenders in many institution/jails are subjected to violence from other inmates and guards.

Probation

Probation is a judicial action that allows the offender to remain in the community, subject to condition imposed by court order, under the supervision of probation officer. It enables the offender to continue working while avoiding the pains of imprisonment. In advance countries, social services are provided to help the offender adjust in the community; counseling, assistance from social workers and group treatment, as well as the use of community resources to obtain employment, welfare, and housing are offered to the offender while on probation. In some countries, community based correctional centers house offenders who are working or obtaining an education.

Confinement

The state reserves the right through the criminal law to hold the criminals in jails. There the jail authorities classify the prisoners. The inmates are assigned to minimum, medium or maximum security classes. Maximum security cells have high walls, barred cells, and careful security measures and have the most dangerous prisoners. Medium class may physically reasonable more guarded cells, but their inmates require less control and therefore can receive more intensive treatment. Minimum security may have separate rooms and offer inmates much freedom and good correctional programmes.

Parole

In Pakistan, the parole system is not very established, but in other advanced countries, prisoners are selected for early release on the condition that they obey a set of restrictive behavioral rules under the supervision of a parole officer. The main purpose of early release parole is to help the ex-inmate bridge the gap between institutional confinement and a positive adjustment within the community.
After their release, offenders are supervised by parole authorities who help them find employment, deal with family and social difficulties, and gain treatment for emotional or substance abuse problems. If the offender violates a condition of community supervision, parole may be revoked and the parolee may be sent back to jail for completion of his confinement period. In the United States, about 40% of all inmates receive mandatory supervised release.

References

↑Dorothy Q. Thomas, Double Jeopardy: Police Abuse of Women in Pakistan, Human Rts. Watch (1992) (“[W]oman victim must provide extraordinarily conclusive proof that her "participation" in impermissible intercourse was forced. (138) We found that absent a showing of extreme resistance or severe bodily injury, the courts are prone to disbelieve the woman's testimony that the sexual act was non-consensual and are even likely to presume consent, which makes her liable to prosecution for adultery or fornication.”)

↑See id. at 45, 49–50 (“Federal Constabulary was initially meant to provide security to internal borders of the so-called settled areas of Khyber Pakhtunkhwa (formerly NWFP). Its mandate is now focused on internal security as a federal paramilitary force.”).

↑See id. at 44, 47 (To maintain law and order in the areas adjacent to international borders and in the Federally Administered Tribal Areas, and drug control along borders with Afghanistan and Iran.”).

↑See id. at 44, 47– 48 (“To secure/check the Indo-Pakistan border and to assist, when requested, respective provincial governments in maintaining law and order.”).

↑See id. at 54–55 (“The National Highways and Motorways Police (NHMP)141 performs police and traffic control functions on national highways and is under the Ministry of Communications which has the charge of national highways and motorways. Under Section 90(2) of the National Highways Safety Ordinance, 2000 . . . . It is notable that the NHMP is the most highly regarded police organisation in Pakistan.”)

↑“Proved” is defined as: “[a] fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”